Citation Nr: 1550237
Decision Date: 12/01/15 Archive Date: 12/10/15
DOCKET NO. 12-24 413 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida
THE ISSUES
1. Entitlement to service connection for tinnitus.
2. Entitlement to service connection for left knee disability.
3. Entitlement to an initial rating in excess of 10 percent for anxiety, including social phobia.
4. Entitlement to an initial compensable rating for right knee patellofemoral syndrome.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESSES AT HEARING ON APPEAL
Appellant and spouse
ATTORNEY FOR THE BOARD
Siobhan Brogdon, Counsel
INTRODUCTION
The Veteran served on active duty from December 2002 to February 2010.
This appeal comes before the Department of Veterans Affairs (VA) Board of Veterans' Appeals (Board) from rating decisions of VA Regional Offices (RO) in Waco, Texas and St. Petersburg, Florida.
The appellant was afforded a Travel Board hearing in October 2015 before the undersigned Veterans Law Judge sitting at St. Petersburg, Florida. The transcript is of record. The Veteran's claims folder is encompassed completely in Virtual VA and Veterans Benefits Management System (VBMS) electronic files.
Following review of the record, the appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required.
REMAND
The Veteran asserts that he has tinnitus related to in-service noise exposure from his many hours as a flight crew member for which service connection is warranted. In-service exposure to noise has been conceded. [See July 2011 VA rating decision.] Review of the record discloses, however, that the appellant has never had a VA audiology evaluation for an opinion as to whether tinnitus is related to service. As such a VA audiology evaluation will be scheduled.
The appellant asserts that symptoms associated with such service-connected psychiatric and right knee disorders have increased in severity and are more disabling than reflected by the currently assigned disability evaluations. Review of the record discloses that he has not had VA examinations for these service-connected disorders since October 2010. As such, current psychiatric and joint examinations will be scheduled to ascertain the status of these conditions. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); Olsen v. Principi, 3 Vet. App. 480, 482 (1992), citing Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992).
The record also indicates that when the appellant's left knee was initially examined by VA in 2010, the examiner did not provide an opinion as to whether left knee symptomatology was related to service, or possibly to service connected right knee impairment. The VA joints examination requested above will address this deficiency.
Finally, the record reflects that the Veteran appears to receive continuing VA outpatient treatment for various complaints and disorders, including complaints related to disorders claimed on appeal. The most recent records date through May 2012. As there is potential notice of the existence of additional VA records, they must be retrieved and associated with the other evidence on file. See Bell v. Derwinski, 2 Vet. App. 611 (1992). Therefore, VA outpatient records dating from June 2012 should be requested and associated with Virtual VA/VBMS.
Accordingly, the case is REMANDED for the following actions:
1. Contact the Veteran and request that he provide authorization with the names and addresses of all providers who have treated him for any or all of the disorders claimed on appeal from 2010 to the present. This must specifically include the "local doctor" in Pensacola, Florida that he referred to at his hearing who treated him for social phobia, but whom he did not identify by name. The RO should attempt to obtain all pertinent records. The claims folder should document the attempts made to obtain records. To the extent that any records are not obtained, the appellant should be notified.
2. Request all VA outpatient records dating from June 2012 to the present and associate them with the Virtual VA/VBMS file. All attempts to obtain the records should be documented.
3. Schedule the Veteran for a VA audiology examination, to include audiometric evaluation. Access to the VBMS/Virtual VA file must be made available to the examiner. Detailed background and clinical history pertaining to noise exposure in service and thereafter should be obtained. The examiner must furnish an opinion as to whether it is at least as likely as not (50 percent probability or better) tinnitus is related to military service. A complete rationale must be provided for the opinion.
4. Schedule the Veteran for a current VA joints examination of the left and right knees. The examiner must be provided access to the Veteran's electronic claims folder. All indicated tests and studies should be conducted and clinical findings must be reported in detail with respect to both knees. The examiner must respond to the following questions:
a) Is it at least as likely as not current left knee disability (50 percent probability or better) is related to service?
b) Is it at least as likely as not current left knee disability is secondary to or has been aggravated by the service-connected right knee disorder.
c) The examiner must consider and discuss the appellant's lay assertions in this regard. A complete and well-reasoned rationale must be provided for any and all opinions furnished.
d) All pertinent physical findings concerning the service connected right knee must be set forth in accordance with the latest examination documents. This should include ranges of motion, findings concerning stability, and any pain or other limitation of function that is found to exist.
5. Schedule the Veteran for a VA psychiatric examination by an appropriate examiner to determine the status of the service-connected anxiety and/or social phobia disorder. Access to VBMS/Virtual VA records must be made available to the examiner. All necessary tests and studies should be conducted to identify the degree of social and occupational impairment attributable to psychiatric disability. The examiner should provide a full multi-axial evaluation and provide an opinion as to the functional effects of service-connected psychiatric disability.
6. The examiners must be advised that the term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.
7. After taking any further development deemed appropriate, re-adjudicate the issues on appeal. If a benefit sought is not granted, provide the appellant and his representative a supplemental statement of the case and afford them an opportunity to respond before the case is returned to the Board.
The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).
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MICHAEL D. LYON
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2015).